The Long Island Pine Barrens Maritime Reserve Act, Environmental Conservation Law, Article 57 (the “Act”), was adopted in 1993 for the purpose of protecting approximately 102,500 acres of the Long Island Pine Barrens located within the towns of Brookhaven, Riverhead and Southampton.  The Act defines the boundaries of the Central Pine Barrens and divides it into two geographic areas, one a 55,000 acre Core Preservation Area (“CPA”), where development is generally prohibited, and the other a 47,500 acre area designated as the Compatible Growth Area (“CGA”), where development is permitted, but only in compliance with certain standards and guidelines designed to preserve the ecology and hydrology of the Central Pine Barrens.

The Act also mandated the creation and implementation of the Central Pine Barrens Comprehensive Land Use Plan (the “Plan”), and created the Central Pine Barrens Joint Planning and Policy Commission (the “Commission”).  The Commission oversees the implementation of the Plan and is charged with joint land use review, regulation, permitting, and enforcement along with local municipalities, as well as the operation of a transferable development rights and conservation easement program.  See, prior blog posts, Pine Barren Credits – There’s Money In Those Trees and Town of Babylon Imposes Moratorium on Use of Pine Barrens Credits to Increase Development Density

Among the Commission’s responsibilities is the review of applications for large-scale development that meets the threshold constituting a Development of Regional Significance.  Pursuant to the Plan, the following developments are defined as Developments of Regional Significance:

  • A commercial, industrial or office development project exceeding 300,000 square feet of gross floor area, or an addition to an existing commercial, industrial or office development where the addition is 100,000 square feet or more and that addition causes the total square footage to exceed 300,000 square feet.
  • A multifamily residential development project consisting of three hundred (300) or more units.
  • A single family, detached residential development project consisting of two hundred (200) or more units.
  • A development project resulting in a traffic impact which would reduce service by two (2) levels below existing conditions or to a level of service of D or below.

In order for the Commission to approve a Development of Regional Significance, the development must comply with all of the standards and guidelines set forth in Volume 1, Chapter 5, of the Plan.  The standards and guidelines are intended to minimize certain areas of environmental concern, such as nitrate and nitrogen discharge, wellhead protection, protection of wetlands and surface waters, stormwater runoff and recharge, and preservation of natural vegetation and plant habitat.  Developments that do not comply with the standards and guidelines may apply to the Commission for a hardship waiver, which can only be granted upon a showing of an extraordinary hardship or compelling public need.

Applications for Developments of Regional Significance are made to the Commission upon submission of a Transmittal Letter, Owners Affidavit, General Project Data Sheet and Standards and Guidelines for Land Use.  The application must also be accompanied by copies of prior approvals, the final approved map or site plan, other maps or data that document and support the information presented, an Environmental Assessment Form or Findings Statement and supporting documentation necessary to comply with the State Environmental Quality Review Act (“SEQRA”) and a Suffolk County Planning Commission determination (if applicable).

Within 60 days of the submission of a complete application, the Commission will hold a public hearing on the application, at which time the applicant and members of the public are provided an opportunity to comment on the development proposal.  The Commission must render a decision within 120 days after declaring an application complete, unless the time is extended by mutual agreement, otherwise the proposal is deemed approved by the Commission.

Developers that propose large-scale developments on lands within the Central Pine Barrens are wise to evaluate whether their proposals constitute Developments of Regional Significance early in the process because the Commission’s discretionary review process creates additional entitlement risk and can result in a longer timeline for securing project approval.

On March 28, 2018, the Babylon Town Board adopted a moratorium on any new land use applications that seek to increase a parcel’s wastewater limits established by the Suffolk County Department of Health Services (“SCDHS”) by utilizing Pine Barrens Credits (“PBC”), which effectively transfer development rights from other parts of Suffolk County to properties within the Town of Babylon.  During the period of the moratorium, the Town plans to study the potential impacts to groundwater from allowing developers to increase development density by acquiring PBCs.

The concept of transferring development rights using PBCs derives from the Long Island Pine Barrens Maritime Reserve Act, which was adopted in 1993 for the purpose of protecting approximately 100,000 acres of the Long Island Pine Barrens located within the towns of Brookhaven, Riverhead and Southampton.  As one method of land preservation, the Act authorizes the creation of a transfer of development rights (“TDR”) program, the specifics of which are set forth in the Central Pine Barrens Comprehensive Land Use Plan (“Plan”).  Under the TDR program, a PBC can be used to transfer the development potential from a parcel of property within the protected Pine Barrens Core Preservation Area (“Core”), or other environmentally-sensitive area identified in the Plan (a “sending parcel”), to a parcel in a designated area outside the Core (a “receiving parcel”).  Upon acceptance of the PBC, the sending parcel’s development rights are transferred to the receiving parcel, which may now be developed more intensely.  For a more detailed discussion of the Pine Barrens TDR program, see John Armentano’s blog post, Pine Barren Credits – There’s Money In Those Trees.

Historically, PBCs have been accepted by several towns and by the SCDHS to permit a new development project, or an expansion or change of use of an existing building, that will result in a wastewater discharge (effluent loading) that exceeds the SCDHS’s allowable sanitary flow rate for parcels that are served by an individual on-site sewerage system (i.e., not connected to a municipal sewer system).  The allowable flow rate for a particular parcel is set forth in Article 6 of the Suffolk County Sanitary Code and is calculated based on the proposed use, and size of the building and the parcel on which it sits, as well as the hydrogeological (groundwater recharge) zone in which the parcel is located.  A PBC may be used to permit additional effluent loading up to a maximum of twice the allowable density.

Following the recent approval of two development projects in North Babylon and Deer Park, the Town has decided to take a closer look at the environmental consequences of allowing for increased density.  According to Richard Groh, the Town’s chief environmental analyst, the Town’s planning and environmental control departments have formed a working group to study the impacts to groundwater that will result from continuing the practice of accepting PBCs to increase development density.  Upon completion of the study, the group will submit its recommendations to the Town Board for consideration.